Article excerpt

AN INTRODUCTORY REVIEW

If a right to privacy can hardly be considered a newfound concept, the meanings ascribed to it have long taken on an ever-changing, chameleonic cast. The American version of privacy, founded in English constitutional history and, less notably, in the French Enlightenment, did not manifest itself in modern guise until the late nineteenth and early twentieth centuries, when it became a distinct political and philosophical force. (1) The notion of a "right to be let alone" emerged as an attribute of human liberty with the appearance in 1890 of the now famous Warren-Brandies article. (2) Yet its origins in American constitutional tradition are even more deeply rooted in the past--in colonial events, the Revolutionary era, and the early years of the Republic, as well as in the developments that followed,

Due process liberty dated from the adoption of the Fifth Amendment and its subsequent conversion and application to state action by way of the Fourteenth Amendment. (3) It was the latter that came to serve as a fount of protection affecting intimate personal relations, ranging from parental control over the education of their children, to health choices, the selection of reproductive options, and decisions concerning sexual behavior. (4) If an explicit source was to be found in the Bill of Rights, however, it lay in the Fourth Amendment and the search-and-seizure law to which it gave form and substance. (5) Nonetheless, for all of the references to original intent and the debates that continue to engulf it, definitions of privacy rights remain varied, notwithstanding a lengthy historical record and an extensive list of precursory doctrines and indicia. (6)

The preservation of privacy has grown more difficult and demanding as society has had to face the challenge of increasingly complex and intrusive technological advances. (7) Americans expect the innermost aspects of their personal lives to be shielded from, and, in fact, to be cordoned off from state intervention. All the same, the constitutional basis for such a sheltered framework has not always been clearly established. Doubtless, the Framers of the original Constitution were aware of the need to create some type of protective barrier between the individual and the state. Yet the exact language to accomplish this end and to ensure its implementation seemed difficult to provide. (8) Apart from the buffer in the Fourth Amendment, the authors of the Bill of Rights offered little that could be construed as a privacy safeguard. Perhaps their principal contribution lay in the spirit of liberty conveyed in the first eight amendments.(9) A defined right of privacy remained for another day if indeed such a right was ever to be included in the charter of a nation that had always assumed it as a birthright, albeit one that defied easy categorization. (10)

It was the Fourteenth Amendment, adopted in the aftermath of the Civil War, that supplied the raw material that, decades later, led to the crafting of a judicially created right of privacy. (11) Ill-starred, but not surprising at the time, and among the indicators of a revived attachment to liberty interests, were theories of Social Darwinism that began to take on constitutional significance. Such theories, setting forth harsh derivatives of economic laissez-faire, were exemplified in the oft-noted case, Lochner v. New York, decided in 1905. (12) Lochner became the standard-bearer of an era marked by negativism and by repeatedly encroaching judicial intervention into the realm of state control over employer-employee relations. (13) The reach of the state's police power was limited in ways hitherto unknown.

In the wake of the Great Depression and President Franklin D. Roosevelt's unprecedented court-packing crusade, a majority of the Justices who adhered to extremes of judicial negativism either retired or relented. (14) A broad doctrine of deference to legislative prerogatives replaced substantive due process as the salient dogma of a Court that, in a remarkable change of course, closely reflected the President's expansive perception of governmental services and purposes. …

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